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War Power and Anniversary of Reversal of Roe v. Wad · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
• 0:09
  Speaker 2: US troops in the Middle East remain on high alert
• 0:12
  Speaker 2: as Israel and Iran appeared to be honoring a ceasefire
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  Speaker 2: agreement unexpectedly announced by President Donald Trump last evening. This morning,
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  Speaker 2: Trump was reacting angrily to reports of early breaches of
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  Speaker 2: the deal by both sides.
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  Speaker 3: Now I hear is you just.
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  Speaker 4: Went out because they felt it was violated by one.
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  Speaker 5: Rocket that didn't land anywhere.
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  Speaker 1: That's not what we want, I'll tell you, and I'm
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  Speaker 1: telling you I'm not happy about that Israel either.
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  Speaker 2: Article I of the Constitution gives Congress the power to
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  Speaker 2: declare war, and the War Powers Act requires the President
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  Speaker 2: to consult with Congress before using military force. Democrats and
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  Speaker 2: some Republican lawmakers are critical of President Trump's decision to
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  Speaker 2: attack Iran's nuclear sites because Trump didn't get approval from
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  Speaker 2: Congress or consult with lawmakers beforehand. Here are Democratic House
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  Speaker 2: Minority Leader Hakim Jeffries and Republican Senator Lisa Murkowski.
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  Speaker 6: The role of Congress is very clear. Under Article one.
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  Speaker 6: It is the Congress that has the ability of the
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  Speaker 6: authority to declare war. And so I think you will
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  Speaker 6: see that conversation, that debate move forward this week.
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  Speaker 2: But Trump administration officials have called the strikes limited actions
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  Speaker 2: aimed solely at Iran's nuclear capabilities that don't meet the
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  Speaker 2: definition of war. Here Secretary of State Marco Rubio on
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  Speaker 2: Fox News on Sunday.
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  Speaker 5: This is not a war against Iran. This is this
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  Speaker 5: is very simple. You know, sixty seven days ago, the
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  Speaker 5: President of the United States sent the Rantings a letter
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  Speaker 5: and it said, you're not going to have nuclear weapons,
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  Speaker 5: You're not going to have a militarized nuclear program. Let's negotiate.
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  Speaker 5: I want to do this diplomatically. I want to do
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  Speaker 5: this peacefully. They tried to play them along the way
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  Speaker 5: they've played every America president for the last thirty five years.
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  Speaker 5: And you know, the President told them, if we don't
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  Speaker 5: get a deal, which is what we wanted, then I'll
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  Speaker 5: have to handle it differently.
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  Speaker 2: My guest is Joshua Castenberg, a professor at the University
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  Speaker 2: of New Mexico Law School and a former judge and
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  Speaker 2: prosecutor in the US Air Force. So, josh Article one
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  Speaker 2: of the Constitution gives Congress the power to declare war.
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  Speaker 2: Article two designates the President as commander in chief of
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  Speaker 2: the Army and Navy of the United States, and sometimes
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  Speaker 2: those two may seem to be in conflict.
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  Speaker 1: Yeah, So the framers of the Constitution, in order to
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  Speaker 1: create techs and balances on the federal government and keep
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  Speaker 1: it a government of limited power, gave to the Congress
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  Speaker 1: of the United States the sole authority to declare war.
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  Speaker 1: So historically, what had happened prior to, you know, World
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  Speaker 1: War Two, is that the President would go to Congress
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  Speaker 1: and ask for a declaration of war. And in our
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  Speaker 1: major conflicts with foreign countries, that's exactly what happened. And
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  Speaker 1: that included the Spanish American War, the Mexican American War,
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  Speaker 1: the War of eighteen twelve. Some of these were closed vote.
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  Speaker 1: Certainly the War of eighteen twelve was a close vote.
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  Speaker 1: World War one, the declaration of war against Germany, you know,
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  Speaker 1: he had fifty members of Congress voting no on it,
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  Speaker 1: so it was not unanimous. But after World War Two,
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  Speaker 1: Congress stopped declaring war. You know, with the Korean War,
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  Speaker 1: which Truman and others called the police Action, they at
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  Speaker 1: least had the United Nations with the Security Council Resolution
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  Speaker 1: empowering the United States and allies to go maintain the
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  Speaker 1: integrity of the Republic of Korea. In Vietnam, there was
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  Speaker 1: no declaration of war. There was the Gulf of Tonkin Resolution,
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  Speaker 1: no matter how flawed that was. Only two members of
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  Speaker 1: Congress voted against empowering Lyndon Johnson to ante up greater
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  Speaker 1: forces and respond to attacks committed against the United States
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  Speaker 1: military forces in both North and South Vietnam. You've had
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  Speaker 1: authorizations for the use of force in Afghanistan and in
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  Speaker 1: Iraq Security Council resolutions from the UN with operations Desert Storm.
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  Speaker 1: But over and over again, our presidents are bypassing Congress,
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  Speaker 1: and they're also ignoring the War Powers Act of nineteen
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  Speaker 1: seventy three.
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  Speaker 2: So what about these strikes on Iran ordered by the
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  Speaker 2: president without consulting Congress? Are they unconstitutional?
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  Speaker 1: In this case a strike on Iran. You're going to
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  Speaker 1: hear legal scholars on both sides, and then you're going
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  Speaker 1: to hear the our justice departments say, well, the president
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  Speaker 1: had the authority to launch a single strike against Iran.
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  Speaker 1: Now the president has the authority to respond to attacks
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  Speaker 1: on the United States without a declaration of war under
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  Speaker 1: international law. And common sense. You'd be hard pressed to
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  Speaker 1: argue otherwise. But there's no clear answer here as to
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  Speaker 1: whether the United States was actually threatened at this time
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  Speaker 1: by Iran. And Trump did not go to Congress. He
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  Speaker 1: informed some Republicans that we were likely to strike Iran
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  Speaker 1: because they had moved closer to the production of a
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  Speaker 1: nuclear weapon, but that's far short of asking Congress for
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  Speaker 1: permission to go ahead.
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  Speaker 7: And do it.
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  Speaker 1: The Justice Department gave very tepid support to it and
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  Speaker 1: said he had the authority to do it under the Constitution,
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  Speaker 1: but probably go no further. But unlike even in Syria,
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  Speaker 1: where Congress has funded military operations, there's no specific funding
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  Speaker 1: that anyone could point to that would give Trump the
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  Speaker 1: outright legal authority to launch strikes into Iran. So what
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  Speaker 1: we're left with is, is there something that a president
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  Speaker 1: has under the Constitution that's not written in the Constitution,
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  Speaker 1: that's inherent that would allow the president to strike under
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  Speaker 1: these ccumstances or not. And you know, by and large,
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  Speaker 1: Congress has decided not to weigh in on these issues.
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  Speaker 1: They had an opportunity to do it with the Nixon
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  Speaker 1: impeachment in nineteen seventy four over Nixon's expansion of the
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  Speaker 1: war into Cambodia, but the senior Democrats on the House
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  Speaker 1: Judiciary Committee said, no, we're not going to include that
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  Speaker 1: as an article of impeachment. We've got them on the
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  Speaker 1: other stuff. And ever since then, Congress has given presidents
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  Speaker 1: a pass for violating the War Powers Act. You know,
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  Speaker 1: you'll hear members of Congress on both sides say it's illegal,
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  Speaker 1: it's unconstitutional, but those are usually members on the extreme
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  Speaker 1: wings of their party, you know, the Ran Paul's or
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  Speaker 1: the aocs doing that. And so unfortunately, Congress has kind
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  Speaker 1: of acquiesced to this idea of a more empowered president
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  Speaker 1: than ever before, and the courts won't roll on it.
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  Speaker 2: You mentioned the War Powers Act of nineteen seventy three.
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  Speaker 2: Tell us what that requires of the president and how
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  Speaker 2: it fits in here.
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  Speaker 1: So, you know, if you go back to the Vietnam
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  Speaker 1: conflict and the Gulf of Tonkin Resolution, Congress wanted to
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  Speaker 1: sort of make amends for punting on the war and
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  Speaker 1: allowing Lyndon Johnson to go from sixteen thousand, you know,
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  Speaker 1: military advisors under the Gulf of Tonkin Resolution to almost
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  Speaker 1: six hundred thousand servicemen and women fighting in the Vietnam War,
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  Speaker 1: and also make sure that a president does not expand
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  Speaker 1: wars like Nixon did into you know, the aerial attack
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  Speaker 1: in Cambodia in nineteen sixty nine and the invasion in
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  Speaker 1: seventy and then the air war again in nineteen seventy
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  Speaker 1: two seventy three. So in nineteen seventy three, Congress passes
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  Speaker 1: this War Powers Act, Nixon vetos it, but then Congress
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  Speaker 1: passes it over the veto. So it's a really robust act.
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  Speaker 1: And here are the provisions of the Act that if
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  Speaker 1: there's an absence of a declaration of war by Congress,
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  Speaker 1: the President of the United States has to routinely consult
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  Speaker 1: with Congress until US armed forces are no longer engaged.
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  Speaker 1: Now we know that didn't happen in this incident. I mean,
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  Speaker 1: obviously it was a one time air strike. But it
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  Speaker 1: seems to me that there was a violation of a
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  Speaker 1: War Powers Act when President Trump brought in a couple
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  Speaker 1: of trusted Republicans into the office and said, hey, we're
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  Speaker 1: going to go ahead.
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  Speaker 7: And do this.
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  Speaker 1: The president has to do it in forty eight hours
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  Speaker 1: in writing to the Speaker of the House of Representative
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  Speaker 1: after the strike that didn't seem to be done either.
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  Speaker 1: Then there's other parts of the War Powers Act which
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  Speaker 1: don't necessarily apply right now, but they could, and that is,
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  Speaker 1: if the president deploys ground forces or air forces passed
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  Speaker 1: sixty days, it would need congressional approval to do so.
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  Speaker 1: And I don't think that's going to come into play,
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  Speaker 1: considering Trump has argued that there's a cease fire that exists,
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  Speaker 1: and there seems to be something of a tenuous cease
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  Speaker 1: fire before. Trump seem to have violated the War Powers
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  Speaker 1: Act in Somalia forming Yugoslavia with Bill Clinton, George W.
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  Speaker 1: Bush and the like.
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  Speaker 8: You know.
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  Speaker 1: On the other hand, one could make the argument that
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  Speaker 1: if you have forward deployed B two bombers in Diego,
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  Speaker 1: Garcier or Guam place to strike Iran again, the president
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  Speaker 1: has to get specific approval from Congress to do that.
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  Speaker 1: They're going to say he doesn't, and I think you'll
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  Speaker 1: hear some grumbling in Congress. Democrats will say he does,
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  Speaker 1: but it'll go nowhere.
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  Speaker 2: Has anyone tried to get the courts involved in this before?
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  Speaker 1: Yeah, So what the courts have said, basically is that
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  Speaker 1: this question is a nonju justiciable political question. In other words,
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  Speaker 1: it's outside of the competency of the federal judiciary to
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  Speaker 1: roll upon. It's the political question, and therefore it goes
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  Speaker 1: to the Congress to do with what they may. They
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  Speaker 1: can impeach a president, they have the power of the purse,
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  Speaker 1: they can inquire and the but the Court simply will
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  Speaker 1: not respond directly on this point. And you know, on
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  Speaker 1: top of that, there have been members of the Supreme
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  Speaker 1: Court Scalia, notably that question whether the War Powers Act
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  Speaker 1: was even constitutional. But again, that Act has never seen
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  Speaker 1: the light of day in the Supreme Court because of
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  Speaker 1: the political question doctrine.
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  Speaker 2: Coming up next, what about an authorization for the use
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  Speaker 2: of military force? President George W. Bush was the last
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  Speaker 2: US president to successfully seek one in separate request for
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  Speaker 2: Afghanistan and Iraq before ordering invasions of those countries in
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  Speaker 2: two thousand and one. In two thousand and three, I'm
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  Speaker 2: June Grosso. When you're listening to Bloomberg, Democrats and some
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  Speaker 2: Republicans are criticizing President Trump's decision to attack Iran's nuclear sites,
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  Speaker 2: saying the strikes were unconstitutional and illegal because Trump didn't
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  Speaker 2: get approval from Congress or consult with lawmakers beforehand. In fact,
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  Speaker 2: today House Democratic Caucus Chair Pete Aguilar complained that members
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  Speaker 2: of Congress still hadn't gotten a briefing from the Trump administration,
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  Speaker 2: though one had been scheduled and then canceled.
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  Speaker 3: It is completely unacceptable that Congress has not been briefed
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  Speaker 3: on this in a timely fashion. We need evidence, we
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  Speaker 3: need details, and we need to know them now. There
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  Speaker 3: are a number of outstanding questions, including whether this attack
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  Speaker 3: achieved the administration's stated goals. Launching an attack without congressional
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  Speaker 3: authorization is wrong, but.
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  Speaker 2: Trump administration officials have said the strikes don't meet the
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  Speaker 2: definition of war, and House Speaker Republican Mike Johnson has
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  Speaker 2: said he doesn't think a war powers resolution is necessary.
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  Speaker 7: The manner chief has Article two responsibilities. They're very serious
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  Speaker 7: and important, especially in times like this. I think he
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  Speaker 7: used that authority judiciously.
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  Speaker 2: Democratic Senator Tim Kaine Virginia has introduced a war powers
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  Speaker 2: resolution against Trump, seeking to bar the president from taking
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  Speaker 2: further military action in Iran without congressional approval. As of yet,
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  Speaker 2: a vote on that resolution has not been scheduled. A
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  Speaker 2: similar resolution has been introduced by lawmakers from both parties
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  Speaker 2: in the US House. I've been talking to Joshua Castenberg,
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  Speaker 2: a professor at the University of New Mexico Law School
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  Speaker 2: and a former judge and prosecutor in the US Air Force.
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  Speaker 2: Let's talk about an authorization for the use of military force.
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  Speaker 2: George W. Bush was the last president to successfully seek
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  Speaker 2: an authorization for the use of military force in separate
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  Speaker 2: requests in Afghanistan and Iraq before ordering invasions of those
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  Speaker 2: countries in two thousand and one. In two thousand and three.
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  Speaker 2: Where would that fit in in this scenario.
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  Speaker 1: Well, you know, if Congress gives the president the authorization
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  Speaker 1: for the US is the military force. In many instances
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  Speaker 1: that make sense because if you're fighting a non state
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  Speaker 1: actor like al Qaeda, you can't really declare war on
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  Speaker 1: a non state actor. And so what Congress is essentially
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  Speaker 1: saying to a president is we're going to fund the
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  Speaker 1: military campaign against al Qaeda, you know, against Iraq. The
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  Speaker 1: Congress didn't want it, for whatever reason, declare war against
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  Speaker 1: sade Mussein in the Iraqi government because it would have
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  Speaker 1: been applied, I suppose, but it was a declaration of
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  Speaker 1: war against the Iraqi people, and they wanted to avoid that.
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  Speaker 1: So they authorized the use of military forces in Iraq,
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  Speaker 1: but specifically to remove weapons of mass destruction. So it's
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  Speaker 1: like an authorization for the use of force short of
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  Speaker 1: a declaration of war, you know, for a defined purpose
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  Speaker 1: and an agreement with the executive branch that there will
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  Speaker 1: be funding for that military operation. Like I said, it's
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  Speaker 1: far short of a declaration of war, but it at
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  Speaker 1: least is a constitutional process.
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  Speaker 2: When there are sustained military actions. Have presidents in the
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  Speaker 2: past generally sought approval from Congress?
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  Speaker 1: Well, yeah, I mean George W. Bush, you know, sought
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  Speaker 1: approval from Congress for funding for the authorization for the
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  Speaker 1: use of force against both you know, Afghanistan, al Qaeda
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  Speaker 1: and Iraq. President Obama sought continuing appropriations. I think there
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  Speaker 1: was an authorization thought by Ronald Reagan in regard to
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  Speaker 1: you know, the Caribbean Island. You know, it seems like
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  Speaker 1: so many many years ago, you know, Lyndon Johnson sought
• 14:42
  Speaker 1: an authorization for funding for the Dominican Republic operations of
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  Speaker 1: nineteen sixty five. But here when we have this attack
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  Speaker 1: on Iranian nuclear sites, there's been no request for the
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  Speaker 1: use of force. It was just done.
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  Speaker 2: Is that sort of in line with what a lot
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  Speaker 2: of other presidents have done. I mean, we've seen a
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  Speaker 2: lot of targeted attacks ordered by presidents, and it seems
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  Speaker 2: like in recent years neither party has sought to limit
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  Speaker 2: the president's authority in matters like this.
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  Speaker 1: Yeah, I mean this in a sense, Trump isn't really
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  Speaker 1: doing something novel. You can go back to, you know,
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  Speaker 1: the Navy patrolling the Straits and Foremos during the Reagan administration,
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  Speaker 1: and we certainly engaged in some firefights with the Iranian
• 15:34
  Speaker 1: military in those days. You know, it's a question about
• 15:38
  Speaker 1: what exactly was permissible in Syria during you know, the
• 15:42
  Speaker 1: Obama and first Trump administration. Same with with Libya. But
• 15:47
  Speaker 1: there was consultation with Congress during that time. Not necessarily
• 15:53
  Speaker 1: popular support in Congress, but at least there was consultations
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  Speaker 1: with Congress over those operations. What sets this apart is
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  Speaker 1: it doesn't seem like there was a consultation with Congress
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  Speaker 1: before the strike, and I think that makes this situation unique.
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  Speaker 1: And some people might say, well, that's incredibly nuanced, but
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  Speaker 1: it does separate it from from prior military action because.
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  Speaker 2: There's a difference between informing and consulting.
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  Speaker 1: Well, there is absolutely and consulting seems to me that
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  Speaker 1: you have trusted leaders in both parties and you don't
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  Speaker 1: just cherry pick and say, well, I'm going to get
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  Speaker 1: my yes people around me, be four or five of them,
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  Speaker 1: and say hey, we're going to do this, but don't
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  Speaker 1: share it with anybody else. I mean, consulting means that
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  Speaker 1: the committees, you know, the Armed Services Committee or the
• 16:48
  Speaker 1: Intelligence Committee, generally those committees, particularly in the Senate, get
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  Speaker 1: along with each other. Those are the non contentious, you
• 16:56
  Speaker 1: know committees. Generally, they're trust worthy, and that's who presidents
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  Speaker 1: have consulted with.
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  Speaker 2: And Congressional leaders are still waiting for their classified briefing
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  Speaker 2: that was scheduled for today and then canceled and apparently
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  Speaker 2: not rescheduled yet. Thanks so much, Josh. That's Professor Johnshua
• 17:16
  Speaker 2: Castenberg of the University of New Mexico Law School.
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  Speaker 4: Good afternoon. I'm here today with an incredible group of champions,
• 17:24
  Speaker 4: members of Congress, and advocates for reproductive freedom here in
• 17:31
  Speaker 4: the United States of America. Today we solemnly gathered to
• 17:36
  Speaker 4: mark the anniversary of the Dobbs decision, one of the
• 17:43
  Speaker 4: most unconscionable and Unamerican decisions in the history of the
• 17:49
  Speaker 4: United States of America.
• 17:51
  Speaker 2: House Minority Leader Hakim Jeffries joined with other Democratic members
• 17:56
  Speaker 2: of the House to mark the third anniversary of the
• 17:59
  Speaker 2: Supreme Court decision that took away the constitutional right to abortion,
• 18:04
  Speaker 2: established nearly fifty years earlier in the case of Roe
• 18:08
  Speaker 2: versus Wade. The Dobbs decision represented the first time in
• 18:12
  Speaker 2: our country's history that the Court has taken away a
• 18:16
  Speaker 2: constitutional right. The decision upended the politics of abortion. Seventeen
• 18:21
  Speaker 2: states have six week or total bans on abortion, and
• 18:25
  Speaker 2: now anti abortion activists are pushing for new restrictions on
• 18:29
  Speaker 2: prescribing and dispensing mifipristone, the method that has become the
• 18:34
  Speaker 2: most widely used form of abortion care today. Democratic Senator
• 18:38
  Speaker 2: Patty Murray of Washington warned about the possible consequences of
• 18:43
  Speaker 2: the review of the data on mifipristone ordered by Health
• 18:47
  Speaker 2: and Human Services Secretary Robert F. Kennedy Junior.
• 18:51
  Speaker 8: Trump's FDA recently announced it will undertake a comprehensive review
• 18:55
  Speaker 8: of mifipristone. Why because of discredited junk sign It's from
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  Speaker 8: the same anti abortion activists who helped write Project twenty
• 19:04
  Speaker 8: twenty five, and unfortunately we know exactly where this is going.
• 19:09
  Speaker 8: Trump ripping Christone off the shelves, reinstating unnecessary restrictions, banning
• 19:16
  Speaker 8: telehealth prescriptions, and curtailing access in every single state.
• 19:21
  Speaker 2: My guest is healthcare attorney Harry Nelson, a partner at
• 19:24
  Speaker 2: leech Tishman Nelson Hardiman. Harry tell us about the landscape
• 19:29
  Speaker 2: of abortion since the Supreme Court's Dobbs decision, which overturned
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  Speaker 2: roe versus Wade.
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  Speaker 7: Today is the third anniversary of the Dobbs decision overturning
• 19:39
  Speaker 7: Roby Wade. So what happened in the last three years
• 19:42
  Speaker 7: is that, depending on how you count, twelve or thirteen
• 19:44
  Speaker 7: states have enacted what are effectively near total bans prohibiting abortion.
• 19:50
  Speaker 7: In a handful of states to Dave's mother's life, about
• 19:54
  Speaker 7: five or six dates have passed partial bans by putting
• 19:58
  Speaker 7: early justational limits where any kind of abortion is banned
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  Speaker 7: after a fetal heartbeat is detected, which is usually six weeks.
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  Speaker 7: So between those two categories we have nineteen or twenty
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  Speaker 7: states that have put in bands that we have a
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  Speaker 7: few other states that have put in second trimester bans
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  Speaker 7: on abortions that we're legal in the time of Roe v. Wade,
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  Speaker 7: So that's been a huge restriction. We've had voters in
• 20:24
  Speaker 7: a number of states, you know, voting to keep abortion
• 20:28
  Speaker 7: rights in place, in states like Missouri and Arizona, states
• 20:33
  Speaker 7: where they struck down bands. And then there's legislation in
• 20:36
  Speaker 7: at least ten or twelve states to protect abortion rights
• 20:41
  Speaker 7: more expansively, including to allow doctors in those states to
• 20:45
  Speaker 7: practice across state lines through what are called shield laws.
• 20:49
  Speaker 7: So we've seen really a complete remaking and carving up
• 20:53
  Speaker 7: of the map of different states taking hostile positions, taking
• 20:58
  Speaker 7: protective positions, and a very different looking America than we
• 21:01
  Speaker 7: had with respect to abortion three years ago.
• 21:04
  Speaker 2: Harriet may seem surprising to some that despite all the
• 21:07
  Speaker 2: states with near or total bands on abortion, that the
• 21:11
  Speaker 2: number of abortions in this country has steadily increased according
• 21:15
  Speaker 2: to new data from the Society of Family Planning. Explain
• 21:20
  Speaker 2: why the numbers are increasing.
• 21:22
  Speaker 7: Yeah, it's a really interesting phenomenon. I think in many ways,
• 21:26
  Speaker 7: the discussion of all these abortion restrictions has kind of
• 21:30
  Speaker 7: drawn attention to the availability of abortion via telemedicine and
• 21:36
  Speaker 7: via medications that women can take in the privacy of
• 21:40
  Speaker 7: their own homes. So we've created a much greater level
• 21:44
  Speaker 7: of awareness of abortion options. We've created just a much
• 21:48
  Speaker 7: more educated group of patients who understand what their options are,
• 21:53
  Speaker 7: and we've created options for cross state patient flows, so
• 21:56
  Speaker 7: we've seen some patients traveling, some patients ordering medications online.
• 22:02
  Speaker 7: So if the goal was to actually shrink the number
• 22:05
  Speaker 7: of total abortions, there's actually not only no evidence that
• 22:08
  Speaker 7: the repeal did that, but we've actually had some kind
• 22:11
  Speaker 7: of a modest increase in the total volume of abortion.
• 22:14
  Speaker 2: So medication abortion has become the most widely used form
• 22:19
  Speaker 2: of abortion. It accounted for sixty three percent of all
• 22:22
  Speaker 2: abortions nationwide in twenty twenty three. But anti abortion activists
• 22:27
  Speaker 2: are pushing for new restrictions on prescribing and dispensing the
• 22:33
  Speaker 2: abortion drug mifipristone, and now Health and Human Services Secretary
• 22:39
  Speaker 2: Robert F. Kennedy Junior has ordered a review of mifa pristone.
• 22:45
  Speaker 2: Is that, as ominous as it sounds, MiFi pristone has
• 22:49
  Speaker 2: been found to be effective and safe in studies.
• 22:54
  Speaker 7: So the opening of pellamedicine as a means of women
• 22:59
  Speaker 7: getting mifipristone by mail really opened up in the pandemic
• 23:04
  Speaker 7: as a result of the dropping of some of the
• 23:07
  Speaker 7: restrictions on telemedicine and mailing of publications. In the case
• 23:11
  Speaker 7: of abortion, we had had a restriction in place through
• 23:15
  Speaker 7: an FDA process called REM's Risk Evaluation and Mitigation Strategies,
• 23:20
  Speaker 7: by which the medication had only been available on an
• 23:23
  Speaker 7: in person basis. There was a required in person review,
• 23:26
  Speaker 7: so that went away basically in twenty twenty one, and
• 23:30
  Speaker 7: that had been the law. We had a challenge last
• 23:31
  Speaker 7: year in the Spreme Court, where the Supreme Court unanimously
• 23:34
  Speaker 7: ruled that in the Alliance Forrismocratic Medicine case that there
• 23:37
  Speaker 7: was no standing to challenge the FDA's authority. But what
• 23:40
  Speaker 7: happened in May last month was that RFK, as Secretary
• 23:45
  Speaker 7: of the Department of Health and Human Services, directed the
• 23:48
  Speaker 7: FDA Commissioner to review the safety data, essentially to consider
• 23:52
  Speaker 7: whether there are elevated complication rates. Many people who are
• 23:57
  Speaker 7: observing this believe that this was a freak to essentially
• 24:02
  Speaker 7: a rollback of the allowance for telemedicine and mailing of
• 24:07
  Speaker 7: mifipristone by the FDA and a return to some kind
• 24:11
  Speaker 7: of restriction on the drug. Obviously, there's a lot of
• 24:14
  Speaker 7: concern because the clinical data does not suggest any tightened
• 24:18
  Speaker 7: risk or any problems that are occurring as a result
• 24:22
  Speaker 7: of the greater access and accessibility of mephipristone. So a
• 24:25
  Speaker 7: lot of people are worried that what is happening right
• 24:27
  Speaker 7: now is kind of a lead up to an action
• 24:30
  Speaker 7: later this year or next year to kind of roll
• 24:33
  Speaker 7: back the availability of telemedicine and mailing of medications through
• 24:38
  Speaker 7: FDA restriction.
• 24:39
  Speaker 2: Has the Trump administration also tried in different ways to
• 24:44
  Speaker 2: restrict access to abortions.
• 24:47
  Speaker 7: There are a number of other places where we can
• 24:49
  Speaker 7: see that the administration is acting to restrict access to abortion.
• 24:52
  Speaker 7: We've seen a change in the hip Hop privacy rules
• 24:55
  Speaker 7: where certain protections were put in to limit access to
• 25:01
  Speaker 7: records of providers and use privacy to protect interstate inquiries.
• 25:06
  Speaker 7: That executive order has been essentially canceled by the Trump administration.
• 25:09
  Speaker 7: We've had the Trump administration, through Health and Human Services,
• 25:13
  Speaker 7: dropping requirements that were imposed in the Biden administration that
• 25:17
  Speaker 7: hospitals you must provide abortion in life threatening emergencies. We've
• 25:22
  Speaker 7: had the Trump administration moving to defund clinics like planned
• 25:26
  Speaker 7: PARENTID clinics that are providing abortion care. And we've seen
• 25:30
  Speaker 7: over and over again again in the filings made on
• 25:32
  Speaker 7: behalf of the FDA through the Trump administration that there's
• 25:36
  Speaker 7: a backing off of a lot of the protection of abortion.
• 25:40
  Speaker 7: So all of these are kind of little piecemeal steps
• 25:42
  Speaker 7: by which the Trump administration is essentially looking for, whether
• 25:45
  Speaker 7: it's through funding or otherwise through its regulatory strategy and messaging,
• 25:50
  Speaker 7: to be more hostile certainly and less supportive of abortion rights.
• 25:55
  Speaker 2: Are there provisions in the so called Big Beautiful Bill
• 25:59
  Speaker 2: that would hurt abortion rights?
• 26:02
  Speaker 7: Yeah, there's several provisions in the Big Beautiful Bill that
• 26:07
  Speaker 7: would have significant implications for abortion access. Certainly, there's a
• 26:11
  Speaker 7: there's language to cut all Medicaid payments to clinics, including
• 26:15
  Speaker 7: Planned Parenthood, that provide abortions. There's a elimination of certain
• 26:20
  Speaker 7: costs sharing subsidies for Affordable Care Act marketplace exchange policies
• 26:26
  Speaker 7: that cover abortions, sort of forcing individuals to who are
• 26:29
  Speaker 7: on those plans to pay out a pocket for that coverage.
• 26:33
  Speaker 7: And there's a broader splashing of essentially, if the House
• 26:37
  Speaker 7: version passes eight hundred billion dollars from Medicaid, that would
• 26:42
  Speaker 7: definitely have an impact on unlimiting access to abortion.
• 26:46
  Speaker 2: Is it surprising that abortion wasn't a defining issue in
• 26:50
  Speaker 2: the last elections?
• 26:52
  Speaker 7: It was clear that it's for a majority of voters
• 26:54
  Speaker 7: support for abortion, you know, which remains consistent something not
• 26:58
  Speaker 7: quite two thirds of all Americans spreads support for abortion
• 27:01
  Speaker 7: being legal in all or most cases, and only less
• 27:05
  Speaker 7: than ten percent think it should be you know, broadly illegal. Nonetheless,
• 27:09
  Speaker 7: like that was not a basis on which people voted
• 27:11
  Speaker 7: in the presidential election, and so it's a really interesting question,
• 27:16
  Speaker 7: you know, how much you know the next cycle of
• 27:19
  Speaker 7: elections this fall and next year in the midterms are
• 27:22
  Speaker 7: going to be driven by abortion rights. It's very clear
• 27:26
  Speaker 7: that when you put the abortion issue narrowly before voters,
• 27:30
  Speaker 7: even in socially conservative states, you will find a majority
• 27:33
  Speaker 7: of voters expressing a desire for abortion access in almost
• 27:38
  Speaker 7: all cases. So it's only when you sort of bring
• 27:41
  Speaker 7: it make it create a more complicated situation of a
• 27:43
  Speaker 7: general election where people have to vote on a whole
• 27:45
  Speaker 7: series of issues, that you see abortion dropping as a
• 27:49
  Speaker 7: voting issue. Clearly, we see in the data that women
• 27:53
  Speaker 7: are more supportive than men slightly of abortion it's a
• 27:57
  Speaker 7: less driving issue for voting. But again, the message to
• 28:01
  Speaker 7: me of the twenty twenty four election is that if
• 28:05
  Speaker 7: there is a complicated enough mix of social and policy
• 28:09
  Speaker 7: issues before voters, abortion is not winning the day as
• 28:14
  Speaker 7: the overriding decision. Whether it was the economy or or
• 28:16
  Speaker 7: you know, any number of other things. Abortion did not
• 28:19
  Speaker 7: carry the day with voters in Abortion rights did not,
• 28:22
  Speaker 7: and you know, in the presidential election, and I think
• 28:24
  Speaker 7: it's going to be an interesting question to see whether
• 28:27
  Speaker 7: that shifts at all as we approach the next elections.
• 28:31
  Speaker 2: So where do you see the battle for abortion rights
• 28:35
  Speaker 2: in the future.
• 28:36
  Speaker 7: I mean, I think we're clearly seeing that, you know,
• 28:39
  Speaker 7: the state battle grounds are the centerpiece of the fight.
• 28:43
  Speaker 7: But I think, you know, it's going to be really
• 28:45
  Speaker 7: interesting to see what happens at the FDA and at
• 28:48
  Speaker 7: the Supreme Court. One of the really interesting battles to
• 28:51
  Speaker 7: watch is the battle over shield laws. We currently have
• 28:54
  Speaker 7: doctors in abortion permissive states, or at least one doctor
• 28:58
  Speaker 7: being prosecuted criminally, you know, by assul abortion restrictive states,
• 29:04
  Speaker 7: and you know, this battle going on over whether doctors
• 29:07
  Speaker 7: can practice across state lines to provide abortion care. So
• 29:10
  Speaker 7: Spring Court's going to have to weigh in on that issue.
• 29:12
  Speaker 7: We're going to have the FDA making some decision on
• 29:15
  Speaker 7: and the Spreme Court likely also called on to weigh
• 29:18
  Speaker 7: access to mister prissonis the abortion medication. So I do
• 29:22
  Speaker 7: think there's a lot of game left to be played,
• 29:25
  Speaker 7: but I suspect it's less at the ballot box nationally
• 29:28
  Speaker 7: and much more with referenda at the state level and
• 29:32
  Speaker 7: decisions before the Federal Supreme Court and state Supreme courts
• 29:35
  Speaker 7: as this continues to play out.
• 29:37
  Speaker 2: Thanks so much, Harry. That's Healthcare at Journey Harry Neilson,
• 29:41
  Speaker 2: and that's it for this edition of The Bloomberg Law Show.
• 29:43
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• 29:46
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• 29:50
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• 30:02
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